AN ANALYIS OF THE LATE PROFESSOR ATIENO-ODHIAMBO S HISTORICAL DISCOURESES....pdf.pdf

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VOLUME 1 DECEMBER 2012
Special Issue on Atieno-Odhiambo: Proceedings of the Conference Held at Maseno
University on 14-15, July 2011
Maseno University Journal

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Editor in Chief:
Professor P. Okinda Owuor, Department of Chemistry, Maseno University, P.O. Box 333 Maseno,
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MASENO UNIVERSITY JOURNAL
Maseno University Journal Volume 1 2012
Editorial Board

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Dr. Sandya Gihar, Advanced Institute of Management, (Chaudhary Chara
Singh University, Meerit), NH-35, Delhi-Hapur Bye Pass
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Email: sowandiga@iconnect.co.ke
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Futures (SURF), University of Salford, Manchester,
U.K. Email: T.May@salford.ac.uk;

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Table of Content
ARTICLES
Editorial Board .........................................................................................................i
Table of Content ..................................................................................................... iv
Responsibility as Communal Freedom: Reflections of Individual and Collective Responsibility .. 1
Elias K. Bongmba......................................................................................................................1
Kenya’s Elections Law dangles the Prospect of Recall even as it Renders it Essentialy Unworkable
...........................................................................................................................14
Carey Francis Onyango ........................................................................................................... 14
Learning from a Friend: Everyday Intelligence and the Constitution of Republic ....................26
David William Cohen.............................................................................................................. 26
Historical Manifestation of Ethnocentrism and its Challenges Today ...................................32
Bishop Dr. Kasomo Daniel ...................................................................................................... 32
Ethnicity: The Legacy of Kenyan Politics from Colonial to Post-colonial Era ........................41
Felix Ngunzo Kioli.................................................................................................................. 41
Knowledge, History and People: Communitarian Threads in the Thought and Works of E.S.
Atieno-Odhiambo: Remembering E.S. Atieno-Odhiambo and Conceptualizing the Mau Mau
Oath.....................................................................................................................57
Mickie Mwanzia Koster........................................................................................................... 57
Living on the Edge: Rustling, Raids and Banditry in Kenya’s North-Eastern Frontier .............71
Gordon Obote Magaga and Jacob Adipo Ogalo........................................................................ 71
For an African Communitarian Philosophy of History: Remembering E. S. Atieno-Odhiambo ..81
Sussy Gumo-Kurgat and Dismas A. Masolo............................................................................. 81
Youth, Destitution and Conflict: Nairobi’s Street Children, 1949- 1962 ...............................95
Milcah Amolo Achola ............................................................................................................. 95
Development Ideals and Reality: Bridging the Kenya Gap Through Devolution ................... 105
Winnie V. Mitullah................................................................................................................ 105
The Al Qaida, the Al Shabaab and the Future of the Somalis in East Africa......................... 128
William R. Ochieng’ and Jethron A. Akallah.......................................................................... 128
The Body as a Figurative Code in Luo Popular Culture, Vernacular Literature, and Systems of
Thought .............................................................................................................. 133
Benjamin M. O. Odhoji ......................................................................................................... 133

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The Home as a Text: A critical examination of spatio-temporal symbolism in Luo context...... 146
Jack O. Ogembo and Catherine Muhoma............................................................................... 146
The Production of Knowledge in, of, and about Africa: The works of Elisha Stephen Atieno-
Odhiambo – Keynote Address................................................................................... 156
Bethwel A. Ogot.................................................................................................................... 156
An analysis of the Late Professor Atieno-Odhiambo’s Historical Discourses as a Corpus for
Lexicography of the African Linguistics...................................................................... 177
Benard Odoyo Okal............................................................................................................... 177
From Round Huts to Square Houses: Spatial Planning in Luo Culture................................ 186
George M. Onyango.............................................................................................................. 186
Nationalism in Kenya: Weakening the Ties that Bind..................................................... 207
Peter Wanyande.................................................................................................................... 207

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Responsibility as Communal Freedom: Reflections of Individual and Collective
Responsibility
Elias K. Bongmba
Rice University, Houston, TX, 77251-1892; E-mail: bongmba@rice.edu
______________________________________________________________________________
Abstract
In this essay, I discuss the idea of responsibility linking it to the notion of communal
freedom. I begin with a description of the idea of responsibility and move on to
discuss collective responsibility, arguing that it is a viable perspective which allows the
global community to assign responsibility and blame in cases where human rights
have been abused. I use the genocide of Rwanda, to demonstrate that even
international organizations like the United Nations and its leaders ought to accept
responsibility for the crimes of genocide in Rwanda since there is enough evidence to
demonstrate that the UN leaders knew that if they withdrew the peace keeping forces,
the Hutus would go ahead and kill the Tutsis. In the third section I argue that
responsibility, whether communal or collective, makes sense in a context of freedom.
In the conclusion, I claim that one could read the publications of Professor Elisha
Stephen Atieno-Odhiambo as narratives of individual and communal search for
responsibility.
Key words: Responsibility, Communal, Freedom
______________________________________________________________________________
Situating Responsibility
In this essay, I explore broadly, the
notion of collective responsibility discussing the
reasonableness of individual and collective
responsibility. I begin by situating the idea of
responsibility, and analyze individual and
collective responsibility using contemporary
African issues to illustrate the reasonableness of
responsibility at the individual and collective
level. Towards the end of the essay I connect the
idea of responsibility to communal freedom. I
conclude with a brief claim that one could
actually read the intellectual production of the
late Professor Elisha Stephen Atieno-Odhiambo
as an invitation to explore the idea of individual
and collective responsibility.
The idea of responsibility is loaded with
theological and philosophical meanings and
many see it as a term that should be understood
in context (Bongmba, 2012). H.M. Kallen has
argued correctly that “A theory of responsibility,
like any other theory, is a reflection of the social
situation which generates the theory. Its matrix is
some immediate relationship of human beings,
as individuals and as societies, to one another.
Responsibility is a function of their contacts, of
their harmonies and conflicts, whose continual
adjustments and readjustments compose the
processes of social life”(Kallen, 1942; Smiley,
2010; Smiley, 2011). In this sense one could also
argue that responsibility is related to individual
freedom. Thus when most people use the word
responsibility, they refer to the idea that an
individual is called to answer or account for
actions that he or she has taken on his or her
own free will. In other words since I am a free
agent, I am accountable for what I think, say, or
do especially if it has an effect on other people.
Some people would question the notion of
responsibility when it is applied to a person who
does not have freedom. The idea here is that if
someone acts under circumstances which is not
of their own choosing, or where he or she were
not given any choice, but compelled to act, that
individual cannot be expected to assume
responsibility for their actions. Responsibility can
be studied from the actions of an individual or a
group of actors. Such studies can also draw
insights from different disciplines. It involves a
number things including but not limited a
reasoned acceptance that one is the source, or
accepts that something he or she has done has

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brought about certain consequences, positive or
negative. It could also mean that one recognizes
and pledges that it is his or her role to make
something happen or prevent it from happening.
Thus one could argue that to think about the
idea of responsibility is to invoke the notion of
free will and freedom of action.
The broad idea of responsibility also
involves raising questions about liability, or
accepting failure on behalf of a company or
group which one has been selected to lead. In
many cases people dismiss responsibility in the
last case as a form of political maneuvering, but
taking responsibility for a disaster or major
failure of operation falls within the broad
understanding of the notion of responsibility. But
we must probe further to know what if there are
any, is the criteria for assuming or assigning
responsibility to someone or an organization.
According to John Fischer and Mark Ravizza
“someone who is genuinely morally responsible
must satisfy certain ‘subjective conditions’: he
must see himself as morally responsible in order
to be morally responsible”(Fischer and Ravizza.,
1998; Fischer and Ravizza., 2000). In many
cases one accepts that there are morally
responsible for something because they have no
choice. For instance, if an individual is elected to
lead and failure occurs during their time in
office, then people expect the elected official to
assume responsibility for the things that have
gone wrong. Sometimes this criterion is difficult
for some ordinary individuals, who may fear that
was such a rule be generalized, accepting
responsibility could also lead to criminal liability.
In many cases, people expect that state leaders or
political actors assume responsibility for broadly
defined failures, or unexpected outcomes which
could not be predicted or which could not be
anticipated and when the leaders acted in good
faith or in carrying out their constitutional
duties. In general, individuals, more than elected
officials, tend to be hesitant, fearing as we have
suggested that they may also be charged with
legal liability.
Scholars often link responsibility to
moral virtue. The Greek philosophers used the
terms moral virtue to refer to excellences that
would enable individuals to function well in the
polis (Alasdair, 1984). These excellences included
prudence, temperance, fortitude, justice,
magnificence, magnanimity, patience,
friendship, and modesty. During the Roman
times, many of these were seen as traits that a
strong individual should have and hence the
word virtue emerged as a description. During
the Middle Ages, Saint Thomas Aquinas, a
disciple of Aristotle not only discussed the
excellences which had been developed by the
Greeks and the Romans, but also articulated
what he called theological virtues which included
faith, hope, and charity as well as other virtues
like prudence, justice, temperance, and fortitude.
It is no surprise that in his appeal for
contemporary society to revive virtues,
MacIntyre has singled out his appreciation of the
virtues at the time of Saint Thomas and the
earlier perspective by Saint Augustine.
I have come to appreciate the distinctions
made by J. R. Lucas who has argued that the
word responsible might just be the best English
rendition of the phrase Aristotle used phronimos.
Lucas says the term today is used to refer to what
he describes as “all-around reasonableness and
reliability, not confined to any particular topic
and entering into the most other desirable
qualities of character”(Lucas, 1993). Today it is a
term that is associated with a number of actions
that includes listening, responding, and assuming
certain postures and practices that relate to other
people. Since an individual or a group responds
to a situation, Lucas and other moral
philosophers have argued that one could assign
or accept responsibility or accept blame for the
situation if a number of things are considered.
For example, what were the alternatives the
individual had in responding to a situation?
Could the individual have done otherwise? Dose
the position of the individual demonstrate
thoughtfulness of reasonableness.
There are several views on when to
assign responsibility. Aristotle claimed that
questions of responsibility are always prior to
that of freedom (Aristotle and Ostwald, 1962).
However, when we encounter a situation today,
we do not always stop to ask if someone acted
freely. Our assumption in many situations is that
someone acted because he or she felt that was the
right thing to do and the actor had the freedom
to make that decision. In other words, the
individual was not compelled to take the specific
action. People generally think of responsibility

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and freedom of action when things go wrong or
things do not go as intended. However if we
reflect on the idea of responsibility, it seems
reasonable to suggest that questions about
responsible actions and assumption of
responsibility should be prior to actions because
those concerns could provide the framework on
which to reflect on the moral freedom of choice
available to the actor.
But an Aristotelian approach might
suggest that responsibility could also be
determined in light of whether there were
mitigating circumstances that could make
observers think differently about the action for
which one is claiming or not claiming
responsibility. J.L. Mackie offers another
perspective through what he calls the “straight
rule of responsibility,” which makes an agent
responsible only for intentional actions (Mackie,
1977). Mackie has worked out his thoughts
carefully grounds his position in a larger
description of intentional systems, which
involves a context where behavior is explainable
and predictable in light of the beliefs, desires,
hopes, fears, intentions, perceptions, and
expectations of a group. It is a combination of
these various things that makes it easy to assign
intention and hence responsibility to a particular
action. This does not solve the problem because
we must still ask whys is that people who are not
directly responsible for an action can be blamed
for it or charged in court for it.
Here is an example I used at the
presentation at the Thabo Mbeki Institute
(Bongmba, 2012). Those who might consider
the Mackie rule could also consider the severity
of a proposed action or the failure to carry out a
certain action. For example, if I planned to call
James and chat on the phone and forgot to make
the phone call because I was shopping, I might
be forgiven. However, if I intended to call Jim at
a certain time to give him information he needed
to take to a meeting and I failed to call him and
something went wrong at the meeting, I have an
obligation to accept responsibility for failing to
make that telephone call. In this way one still
considers intentions and purpose even if one
does not hold some one responsibility in all
cases, everything is not so important (Baier,
1991; Held, 2001).
Collective Responsibility
The idea of collective responsibility is
looked at a little differently. We often see
decisions by people to assume collective
responsibility when companies accept
responsibility like British Petroleum has done for
the massive oil spill in the Gulf of Mexico.
Therefore groups, corporations, and even states
ought to accept responsibility and accept blame
for their actions when those actions affect people
and the environment in a negative way. Outside
questions that deal with corporate responsibility,
collective responsibility is often raised in the
context of political and civil strife. In the African
context the question of collective responsibility
has been raised but not always addressed
adequately in gruesome events like the Genocide
in Rwanda and the post election violence in
Kenya (Cushman and Stjepan G. Mestovic eds,
1996). This is also called collective guilt.
The idea of collective guilt is rejected by
some scholars. For example Thomas Cushman
and Stjepan G. Mestrovic have rejected
collective responsibility that has been attributed
to Serbian intellectuals and H.D. Lewis has
rejected group responsibility; describing it as “the
barbarous notion of collective or group
responsibility” which lets individuals get away
with their responsibility. While Lewis for
instance reminds us of the need to consider the
actions of individuals in cases of mass action like
post election violence or in extreme cases like
genocide where specific individuals have acted to
foster and promote negative actions, I think that
to completely do away with collective
responsibility would make it difficult for political
communities and the international community to
deal with such things like Holocaust, the
Rwandan Genocide, and apartheid, although we
know that certain individuals played a key role in
conceptualizing, planning, and carrying out these
horrible crimes. They acted not only in their own
name, but in light of the responsibilities which
they had at the time as leaders of their state or
employees, security officers, and members of the
police or armed forces that were expected
(compelled) to carry out the decisions of the
authorities (Smith, 1998).
It is therefore important to rethink
collective responsibility because African history
has been marred by violence initiated by the

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colonial project and continued in the
postneocolonial state. While violence remains
complex, African states can no longer explain
the plight of its people by mainly blaming the
colonial project. In other words, the question of
responsibility for the success or failure of the
state no longer is a foregone conclusion. It is
clear to many observers of the African scene that
the debates of the late 1980s and 1990s included
the question of responsibility. While one cannot
look at events in Africa in isolation from
destabilizing global forces such as slavery,
colonialism, and neocolonialism, it is also
evident to some scholars that one can no longer
blame colonial abuses alone for the slow progress
and the growing poverty and violence on the
African continent. Africans and their leaders
particularly are responsible for much of the
violence that is taking place in Africa today. It is
this necessary to think of collective responsibility
in the context of Africa.
My intention here is not to claim that
African states have not made any progress
towards economic and social development. To
make such a claim would ignore much of the
progress that has been recorded even after the so
called movement towards democracy of the late
1980s and the early 1990s. The end of the
colonial era was itself a miraculous achievement.
The struggle to build nation states in an
international and later global context where
some of the new countries were not prepared to
face the challenges, started off successfully in
many countries. However, we must admit that
something went wrong and any discussion about
responsibility is an attempt to sort out who is to
blame for the things that have caused a lot of
pain on the continent. It is therefore the case that
if we raise the question of collective
responsibility, we do so to ask who should be
blamed for the poverty, conflicts, wars and the
atrocities that have been caused in the execution
of those wars. Africa has seen or lived through its
share of major crisis such as the Rwandan
genocide, the extension of the Rwandan conflict
into Eastern Congo which resulted in the death
of many people, the war in Darfur, the wars in
Sierra Leon and Liberia. One major event of the
20th
Century that we can certainly ask who is
responsible, or extend blame is the HIV and
AIDS crisis. The failure by African leaders to
address the HIV AIDS crisis as soon as it was
known as a major global epidemic, places the
responsibility for what has happened on the
African leaders. The irresponsible rejection
protective devices like condoms by religious
leaders also implicate the religious leaders and
yes, they should accept responsibility for failure
on this score.
I also think that when violations of
international law have occurred as they have in
the Rwandan genocide, the Darfur genocide, and
the wars in Liberia and Sierra Leone, it is
important to examine the situation, identify
those who are responsible for the crisis and its
execution, and hold them accountable. This
would mean asking an entire government or state
to assume moral responsibility for the things that
have happened. The idea here is that groups qua
groups and not individual members can be held
responsible. If the entire group cannot be held
responsible their leaders should be held
responsible. Most companies today often take
responsibility for their products and conduct of
their officials.
The difficulty with supporting collective
responsibility as moral responsibility for some
lies in the fact that one could easily see the causal
aspect of collective responsibility, but the moral
aspects of it may not always be clear as one
would expect. I think we can identify causal
responsibility which can be analyzed because we
can point to a decision that led to some activity
that harmed someone. It is more difficult to
determine that a group, rather than the people
who are part of that group share moral
responsibility for an action or a set of actions.
The question here for some critics of the notion
of collective responsibility is the question of
group. Can a collective cause harm in the same
way as an individual can do? Some critics
wonder if the idea of group responsibility
receives attention mainly because individual
members of a particular group who have caused
harm and injury may claim that they have acted
in the interest of the group. Some would argue
that what happens in this case is merely
distributing the amoral acts of a few individuals
to the group. Critics do not think so.
There are those who argue that
emphasizing collective responsibility in the end

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undercuts the sense of individual values that
have been developed over time.
Collective responsibility does not undercut
individual values and freedoms; instead it is the
desire to honor those values that that collective
responsibility is emphasized as a way of
addressing the abuse of power when leaders fail
to act responsibly in their capacity as leaders of
institutions or the states. This includes all acts of
that violate individual and group rights and
includes the planning and execution of wars that
violate human dignity to the extreme. The
concept of collective responsibility makes it
possible to examine war crimes, genocide, and
other acts of violence on a larger scale, especially
when it is committed by one group against
another group.
One important objection that has been
raised is that it is difficult to assign intent to a
collective as one would do to an individual
person. Some argue that groups cannot be
blameworthy like individuals; therefore assigning
collective responsibility to a group is tantamount
to making members of the group guilty by
association. Some scholars in the twentieth
century question the viability of the notion of
collective responsibility because it overturns
individualism. In his classic work, Economy and
Society, Max Weber rejected the notion of
collective responsibility because groups do not
act with the same intention that individuals do
(Weber, 1914). According to this view, Weber,
maintained that it is individuals who determine
actions and act intentionally and it easier
assigning blame on actions of individuals than a
group. H.D. Lewis has argued forcefully that
collective responsibility is a barbarous thought
because it is the individual alone who has moral
responsibility (Lewis, 1948). The idea here is that
if we assign collective responsibility, we end up
criminalizing individuals who do not bear moral
responsibility but who become culpable only
because they belong to a particular group. Again
what is central here is intentionality and whether
one could and should assign it to a collective as
one would assign intentionality to a single actor
or a few actors. Therefore scholars who reject
collective responsibility maintain that it is only
individuals who act with intention and not an
enter community (Narveson, 2002).
Scholars who support collective
responsibility argue that individuals and groups
could be held responsible because both have
psychological responses and as such often
respond to suggestions from others to participate
in activities that could implicate individuals as
well as members of a group. Deborah Tollefsen
has argued that groups often also respond to
events with emotions of anger, and
disappointment that individual and groups have
not acted in a moral manner (Tollefson, 2006).
This is an important point to underscore because
if we examine recent actions and violence in
different places in Africa such as the recent post
election violence in Côte d’Ivoire, and the one
that erupted in Kenya, the actors demonstrated
moral outrage against the manipulation of the
elections; actions which they thought was wrong.
Such actions do give many clues as to who
should be assigned responsibility. In such
actions, it is possible to see group intentions.
Imagine a pattern which goes something like
this. At the end of the elections, each side hopes
that their candidate would be elected. Many of
them, who expect that outcome, often follow the
details. But if at the end something happens, they
are bound to examine what has transpired in
order to file a protest. But the problem in post-
election violence is that many people are often
pushed, as it were, to act violently. If they all act
violently as a group, it is likely that the
leadership incites the group to act that way. If
that is the case, it is a good case to assign
collective responsibility to the leaders and the
group.
Some supporters of collective
responsibility assume that a group has the same
mind (Sosa, 2009). Margaret Gilbert has argued
that there is something like shared intentions and
can be attributed to a group. This seems to occur
in post-election violence. Many times such
action requires very careful coordination from
the leaders, or people who stand to gain the most
from such group action, but it is possible to get a
crowd to think in a similar way, especially they
are taught to see that their opponents want to
make things difficult for them. What we see in
such a situation is the perception by members of
a group that they are under siege, or something
has been stolen from them and it is their right to
act as a group to recover what has been taken

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away from them. They perceive that the only
way to respond to this is to engage in the struggle
as a group. While each individual has a mind of
his or her own, it is the case that when they
perceive that they have been threatened, they
might also think that it would be to their
advantage to act as a group. Under such
circumstances, the group assumes moral agency
in a manner that we could say an individual
takes moral responsibility. Larry May has argued
that when such a collective approach is taken,
what is at work is a “pre-reflective intention”
which precedes further deeper consideration of
the issues by members of a group (May, 1987;
May, 2006). The intentions that emerge from
such actions certainly reflect group intentions.
Since 1994, scholars, Human Rights
Groups have discussed the Rwandan Genocide
in detail, as well as the extension of the conflict
to Eastern Congo. Those familiar with the
history of the genocide know that colonials and
Christian missionaries demonstrated a preference
for the Tutsi people who were in the minority. At
the time of independence, the Tutsis occupied
many of the responsible positions in the country
while the Hutu who were the majority ethnic
group felt they have been discriminated against
and marginalized. Ethnic feelings were so
important that the government created identity
cards which spelled out one’s ethnic group. In
the post independent era, ethnic violence would
break out several times. Later on political
disagreements led to the creation of the
Rwandan Patriotic Force which began fighting
against the government in Kigali. The
government of President Habariyamana reached
an agreement with the RPF, but on his return
from an important discussion on the
implementation of the peace accords, his plane
was shot down and this triggered the ethnic
fighting in which the Hutu majority who had
carried a campaign against the Tutsi set out to
eliminate members of the Tutsi group. The death
of the President just hastened the well laid out
plan by Hutu leaders to exterminate the Tutsis.
In preparation for that, they had compiled a list
of Tutsis that would be killed and ordered
weapons that would be used in carrying out the
killings. The Hutus also carried out a systematic
campaign on the radio, educating Hutus to kill
Tutsis and Tutsi sympathizers.
In order to further demonstrate how the
nature of collective responsibility may work, two
important aspects of this Genocide must be
mentioned. The first case is the fact that for 100
days, the international community did not do
very much to stop the killings. Second, the
United Nations Peace Keeping forces stationed
in Kigali were recalled. As soon as they left the
country, the full killing machine of the Hutu
extremist was unleashed and after about 100
days, hundreds of thousands of people were
killed in one most gruesome acts of violence of
the 20th
century. The international community
then decided there was enough grounds to assign
responsibility; those who perpetrated this
massive killing. The international community
has meticulously hunted those individuals down
and brought before the international Court that
was set up in Arusha Tanzania. Since the
number of people implicated in the promotion or
abating of the genocide was so large and the
Arusha courts could not handle all of them,
Rwandans set up the Gacaca Courts, a
traditional court which held public hearings in
the local communities and worked through the
recognition of the crime, and promotions of
reconciliation.
Some would argue that there is strong
evidence for assigning collective responsibility to
some members of the Hutu community.
Members of that community planned the killings
and persuaded their followers to believe the Tutsi
were their enemies who should be eliminated for
the good of the Hutu community. In the process,
the leaders who instigated the genocide came up
with appalling ideas such as raping and killing of
Tutsi women because killing a woman meant
that she would no longer give birth to Tutsi
children. Even the clergy as we know from the
account of the genocide were involved. They did
not protect people who had gone to church or
children who were in boarding school. They
allowed the killers to come on sacred ground to
carry out their acts of violence.
The question here for opponents of
collective responsibility would be, why do we
have to think of blaming whole communities
when we could identify the perpetrators of
wrongful actions and punish them for their
crimes. Some would prefer that rather than
pursue group responsibility, individuals in a

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community and bring them to justice because it
is not the case that every member of the
community often participates in activities that
cause great harm to others. Thos who support
collective guilt argue that the leaders acted on
behalf of their community.
The second thing on collective
responsibility that we need to rethink regarding
the Rwandan genocide is whether the
international community itself had any
responsibility or could also share in collective
guilt. If blameworthiness is related to a moral
position and it can be demonstrated that
members of international organizations knew
what could happen if they left Rwanda and went
ahead and recommended that the peace keeping
forces should be withdrawn from the volatile
situation. Given what we know today, it is also
possible to demonstrate that the international
community could have taken another action. By
failing to act, or by withdrawing the peace
keeping forces, the international community,
through the United Nations made it possible for
the genocide to take place. I think it is possible
and we should raise the question of collective
responsibility on this account. The documentary,
‘Sometimes in April’, dramatizes the crisis in a
manner that helps us think of international
complicity by showing the events in Rwanda,
then panning back to what the makers of the film
want to portray as active meetings at the United
States Department to deal with the crises. If the
documentary is correct, then the team met
almost daily but did not take any concrete action
to stop the killing. Towards the end, a frustrated
State department official expressed her
disappointment that they could not do anything
to stop the killings, but one of the military
leaders, simply said, the United States had no
choice but remain neutral. He added, that it was
Rwandans killing Rwandans and in the near
future, the US president would apologize to the
world and say that we will never allow such a
thing to happen again, and that will be the end of
it. This is what happened and it was not only the
leader of the United States but other world
leaders did a similar thing.
But let us take a look briefly at the
international community again, especially the
role of the United Nations which ordered its
peace keepers out of Rwanda. One could say that
the security situation in the country had
deteriorated so badly that there was nothing they
could do. One could also argue that if they
remained in the country many of them could
have been killed or caught in a civil war in which
they could not do anything even to protect their
own lives. Yet is also clear or at least there is
some evidence that the United Nations knew
that the situation in Rwanda had degenerated
and that if all foreigners left the country, it would
simply make it possible for an embolden Hutu
extremist community to carry on what their
leaders had planned, eliminate the Tutsis. The
fact that the leaders of the United Nations knew
this would happen and went ahead and pulled
out the peace keeping forces out of Rwanda
constitutes not only a lapse of judgment but a
concrete action with moral implications that calls
opens the door for all to assign collective blame
here because the international community
through the United Nations failed to remain and
provide an important buffer zone, and let it be
known that the Hutus could not carry on the
killings because the whole world would be
watching.
Speaking ten years after the genocide, the
former UN Secretary General, Kofi Annan, said
that he “could and should have done more to
stop the genocide in Rwanda”(BBC News,
2011). The former UN chief reportedly said “The
international community is guilty of sins of
omission.” Why did Annan take this step in
trying to come clean? He was the head of the UN
peacekeeping forces. Under his watch, the
peacekeeping forces left Rwanda, and the Hutus
systematically eliminated about 800, 000 people.
The former UN Chief went on to say: “I believed
at the time that I was doing my best.” One
almost wants to ask the question, how he could
believe that he was doing his best when the
history of ethnic violence in Rwanda was well
known! He further admitted that “the
international community failed Rwanda and that
must leave us always with a sense of bitter
regret.” For the sake of argument, one could ask
what the international community could have
done if the Hutu were so bent in eliminating the
Tutsi. Annan himself says that the UN could
have provided reinforcements. When he became
Secretary General it dawned on him that there
was more he could have done to rally support for

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the mission in Rwanda. What happened in
Rwanda was more than a lapse of judgment on
part of UN leaders like Kofi Annan. It was
neglect of responsibility that contributed to a
catastrophic outcome. It was not only Annan
confessing but the United Nations Security
Council also apologized in April 2000 and
accepted responsibility for failing to prevent or
stop the genocide.
Some Rwandans blamed the UN for
failing to protect them. The BBC report
mentioned what we learned of the mass aspects
of the killing. About 4000 Tutsis sought shelter
close to Belgian troops thinking that they would
be safe because they were within the proximity of
Belgian keeping forces. But they were not given
any protection. The Canadian commander,
Lieutenant General Romeo Dallaire, stated at
the same conference where Annan spoke that the
international community was not ready to help
the Rwandans. In a statement which reflects
what one could say were misplaced priorities of
the international community which had ordered
him and his troops out of Rwanda, he argued: “I
still believe that if an organization decided to
wipe out the 320 mountain gorillas there would
be still more of a reaction by the international
community to curtail or to stop that than there
would be still today in attempting to protect
thousands of human beings being slaughtered in
the same country." This is not an anti animal
statement, but a reflection of the choices we
could make today in the face of mounting
human crisis.
If we go back to the concept of group
morality on which the idea of group
responsibility is based, one could raise many
questions. For example, should the UN system
have been indicted? Should Kofi Annan himself
have been made to answer for his lack of
responsibility? The answer to this question
depends on a number of things which certainly
requires that we determine if Annan or his
colleagues at the UN knew what would happen
and if their attitude was intentional. Here the
evidence of intentionality might be questioned by
some. However, some would argue that given
the volatile situation that had been building up in
Rwanda since independence, it should have been
clear that pulling out the peacekeeping forces
would unleash a rash of killings. The next
question here would be, could the international
court have prosecuted the UN, the Security
Council, or Kofi Annan and the generals on the
ground? Some would say that could not happen
even if some people wanted such prosecutions
because the international community would
have been prosecuting itself. Which leaves the
question, should leaders like Annan have been
held responsible? Some would argue that he
made the best decision based on the information
he had at the time. He did not intend to do
anything that would lead to the slaughter of over
800,000 people. Even if one makes the case that
he still was negligent and has accepted as much,
the counter argument would be, to prosecute him
would in effect be prosecuting the UN itself.
As one thinks of this the question, it is
obvious that nothing happened to the individuals
who were charged with protecting the people and
preventing a war. Why would they be held
accountable? This is where some would say as
the ones who were responsible, it was their duty
to provide the Security Council and the UN the
necessary information to ask for an increase of
peacekeeping forces rather than leave Rwanda.
There was neglect on part of those leaders, but
the UN itself turned around and gave Annan the
top job at the United Nations. Holding him
accountable would have been applying very
tough rigorous standards of moral responsibility
to him. Some would say it is precisely because of
the magnitude of the neglect that such stringent
moral responsibility should have been expected.
Therefore UN leaders should have been
prosecuted as the Hutu leaders who were
prosecuted. Since the International community
defined genocide and set in place conventions
governing the declaration of genocide and steps
to be taken when genocide has occurred, one
would have thought that the UN was in a good
position to know what to do in the case of
Rwanda. Although African countries were not
members of the UN when those conventions and
the International Declaration of Human Rights
were declared, they subscribed to these
conventions, thus granting the UN jurisdiction
on such issues in the African context. Therefore
it would have made sense to hold UN officials
accountable as a matter of fairness.
Global conventions recognize and treat
people as a group and a good example is the

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United Nations concerns for indigenous groups.
These groups are increasingly being seen not as
abstract entities, but people with rights that are
articulated and often violated. In this case a
prominent individual was held responsible for
the crimes that were committed. There are cases
in which individuals of members of a certain
community may also escape being countered as
part of the guilty party. These happen because
even when ethnic cleansing or genocide was
carefully planned and executed in Rwanda, all
members of the political community do not carry
the same responsibility for the crime. For many
people the notion of collective guilt is acceptable
especially in the case of Rwanda where certain
members of the Hutu community engineered the
1994 genocide (Mamdani, 2001). We do know
that not all Hutus were responsible and many of
them went out of their way to protect Tutsis.
However, the national scope of the genocide do
show convincingly that group guilt is reasonable
when a large segment or its leaders plan actions
and order their followers to carry it out, that
community should be held responsible for
collective guilt. Wole Soyinka has called the
hunting down and killing of the Tutsis in
Rwanda a collectivized crime (Soyinka, 1998).
However, it would be a mistake to think that the
notion of collective guilt erases or exonerates
individuals who have played a key role in those
events. In seeking justice crimes against
humanity, charges have been brought against
leaders like Pauline Nyiramasuhuko, Elie
Ndayambaje, Alphonse Nteziryayo, Sylvain
Nsabimana, and Joseph Kanyabashi, all of
Rwanda, have now been convicted of their roles
in the Rwandan genocide.
Responsibility, Freedom and the Other
Responsibility has a relationship to
freedom as I indicated at the beginning. The idea
here is that when we claim that someone is
responsible, we mean that the individual as a free
moral agent, answers by his or her own will for
their thoughts and actions towards other people.
In the main, that is the least we can claim about
individual or even collective responsibility. The
question here is what if an action takes place in a
context where the individual is not free or is
constrained by circumstances to take actions
which he or she would not have taken like in the
case of actions taken under a dictatorial regime
like apartheid South Africa? While we will not
pursue that argument here, it is clear that in such
a situation, the notion of collective responsibility
might overshadow personal responsibility
because it can be shown that people acted in
certain ways not out of the exercise of their
freedom but because they were compelled to act.
It is clear then that responsibility is related to
freedom, but under some circumstances, one’s
responsibility can be limited by that individual’s
freedom, an idea that is not only intriguing, but
raises important moral dilemmas.
The work of Emmanuel Levinas has
brought a different perspective on the idea of
responsibility. In ‘Otherwise than Being’, Levinas
argues that responsibility is not limited to the
type of deficiencies others suggest. The idea of
responsibility in Levinas outstrips every
limitation one could place on it and therefore
Levinas brings a different perspective to
responsibility by arguing that one is always
responsible to the other and such responsibility
extends beyond the freedom of the subject
(Levinas and Levinas., 1981a). The issue here is
not that one does not have a choice to make, but
the view that one is responsible to the other and
cannot allow his or her freedom infringe on those
responsibilities because one is infinitely
responsible for the other in the sense in which
Levinas talks about the relationship to the other.
In other words, based on an ethics of the face
which Levinas has articulated, one is always
responsible and answerable to the other
regardless of the conditions under which your
actions take place. Levinas describes that
responsibility as an obsession which he calls “a
responsibility of the ego for what the ego has not
wished, that is for the others”(Levinas and
Levinas., 1981b).
In this relationship Levinas emphasizes
the freedom of the other which calls into
question the plans of the subject. In calling into
question, the domination of the subject, Levinas
insists that the powers and the demands of the
other who is encountered in the face-to-face
relationship surpass those of the subject. It is a
meeting that is filled with contradiction because
the subject who assumes that he or she
understands the other does not understand the

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other. Thus the subject who encounters the other
is summoned to responsibility even if the subjects
might want to use his or her freedom differently.
This summons to responsibility according to
Levinas significantly changes the debate because
it invites a new understanding of truth which
must start when the subject realizes that he or
she does not understand the other. The
ontological view and understanding which turns
the other into an object to be grasped, held, and
controlled emphasizes the freedom of the subject
at the expense of the other. Levinas in very
telling language argues that the use of knowledge
and understanding to present truth as a grasp
implies “knowledge would involve the
suppression of the other by the grasp and by the
hold, or by the vision that grasps before the
grasp”(Levinas, 1969a). This eliminates the
freedom of the other. However, despite this
ontological egoism, Levinas argues that the
other’s face preempts such a grasp and praxis of
domination as the other also grasps the subject.
But this is a different grasp because this grasp
stops the subject from carrying out its
dehumanizing projects; displaces, and
overthrows the subject’s view of truth.
The question then is what is truth?
Levinas argues that truth from this perspective is
to stand in the face of other and have that other
reject your imperial projects of domination. The
other simply does not tell you that she has a
different view of what you are doing, but actually
makes a demand on the subject and Levinas calls
that demand an “appeal to me [which] is
truth”(Levinas, 1969b). In this transaction, truth
is not a comprehension that is worked out in
dialogue between the other and the subject, but is
already that relationship. In other words, being
in relationship is truth itself. Levinas calls it a
modality of relations between the subject and the
other (Levinas, 1969c). Robert Manning has
argued that “truth as a modality of this
relationship means that truth is inseparable from
the just relationship between people and, thus,
from ethics or morality, or justice”(Manning,
1993). Levinas himself is insistent that truth is
not control “but rather to encounter the other
without allergy, that is in justice”(Levinas,
1969d).
What we have here is a claim that to be
in the presence of the other, and relate to the
other opens one to truth and truth which is an
opportunity to be in the presence of the other on
the terms of the other and not on the basis of
one’s propositions and knowledge. It is to open
one’s self to the demands of justice before the
other. To be open to the demands of justice in
the presence of the other is to be open to accept
responsibility for the other. This has implications
for our understanding of individual and one
should add collective responsibility in the
African context.
Africa stands at a significant crossroads
and it is clear to all that Africa needs to move
forward, and to do that, African leaders need to
assume responsibility not only as their
constitutional obligations, but as a matter of
freedom, the freedom of the other(s), who are
citizens. In recent years, Nobel Economist
Amartya Sen has argued that development is not
merely building new infrastructure, but creating
the conditions for members of our political
communities to experience freedom. This
freedom is significantly different from the one
articulated by rulers and those who have
governed the postneocolonial state during the
last half of the century. If we pursue
development as freedom, it will be clear that
change goes beyond infrastructural change
because it is an activity that should respond in
very definite ways to who were are as people.
Such a view of the other and community opens
spaces for individuals to define themselves and
find ways of shaping their communities in new
and responsible ways. The great accomplishment
of Sen in ‘Development as Freedom’, is his
insistence that we cannot define or understand
development and change merely as the
possession of wealth (utilitarians), or merely as
the processes we have used to achieve what we
have (libertarians), but development comes when
we have acted responsibly and nurtured the
capabilities of people which according to Sen
constitutes substantive human freedoms which
would then allow people in a political
community to focus on important things that
matter to people.
If we look at political practice in Africa
we will discover that many of the areas of human
freedom which Sen discusses are lacking.
Freedom in Sen’s work involves political
freedom, economic freedom, opportunities for

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members of the political community to excel,
socio-political transparency, and creating a social
and political climate that is secure. All these
things could contribute to the experience of
justice which Sen defines as the creation of
capabilities. It is not easy to give complete or
settled answers on these questions because one
has to weigh them in light of the politics of the
day and the behavior of the markets, but
capabilities is a useful tool because it offers
different ways of understanding poverty, and the
other disparity that exists in society such as the
gender divide. Developing capabilities requires
the establishment of strong democratic
governance where political rights exist. “Political
rights, including freedom of expression and
discussion, are not only pivotal in inducing
social responses to economic needs, they are also
central to the conceptualization of economic
needs themselves”(Sen, 2000). When Sen
discusses political rights he is not talking of it in
abstraction because he has addressed the rights
of women in development. As part of his overall
argument, it is not merely providing women with
goods or money, but paying attention to the
wellbeing of women. This is done by
strengthening their capabilities and agency.
What is very appealing in the work of Sen is the
idea that while he champions democratic ideals
and the development of human capabilities, he is
open to fresh ideas on these things. He draws
examples from India to demonstrate how the
West does not have a monopoly on organizing a
functioning political community. We live at a
time when pluralism in all respects must provide
the resources and ideas that have to work with to
achieve our goals and not ground economic
success in a democratic society by selfish values
alone.
Sen like Levinas brings together justice,
freedom, and responsibility. What we have in
Sen is an argument which calls the human
community to the reality that we have a
responsibility to see “development as an
integrated process of expansion of substantive
freedoms that connect with one another”(Sen,
2000). We may not be happy with this view
because those of us who have championed neo
liberal ideas as necessary perspective on
economic development, but Sen has brought to
the conversation ideas that are similar to what
we have seen in Levinas. Levinas has formulated
his ideas in response to the long ontological
journey of the western, and we should add the
postneocolonial leader as subject. Those three
ideas point to a new truth which according to
Levinas is the face of the other who stands before
the subject. That face is not an object. We have
developed certain characterization of the other:
She is a widow, orphan, wife, concubine,
prostitute, member of the opposition party,
uneducated, gay, lesbian, AIDS victim, etc. The
face, before which we stand, resists these
categorizations and calls on us to see the human
face that is in front of us. This face itself is a
resistance, the on-going anti colonial and anti
imperial project that has been ever been
launched. It is a face that calls us to our core
values. It is a face that reminds us of our
collective responsibility as the path towards
freedom.
Un-concluding Word
This reflection is written in honor of my
senior colleague Professor Elisha Stephen
Atieno-Odhiambo whose interdisciplinary
thinking moved Africanists to ask local questions
in a global context in a different way. One area
of interest that was always imbedded in his work
but never made explicit was the ethical and
moral implications of our knowledge, power,
and place in society. One could argue that in
addition to their declared intention of exploring a
sociology, politics, and risks of knowledge,
Odhiambo and his co-author, David Cohen gave
us an opportunity to reflect on responsibility,
may be not in the broad sense as I have tried to
sketch it, but left imprints there for one to think
of individual as well as collective responsibility
even in a narrow sense of the local community in
Kenya or the outworking of political rivalry on
the National stage in Kenya.
In ‘Burying SM’ (Cohen and Atieno-
Odhiambo, 1992), one could argue that
Odhiambo and Cohen addressed not only the
drama of an individual family, and that of an
ethnic group, but the legal responsibility which
many African elites ought to assume to ensure
that after their departure, the funeral and burial
rites would go smoothly and because he or she
made provisions for all involved to respect the

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12
will of his surviving spouse, and also made
provisions for the local traditions. However, one
wonders if in taking care of the legal aspects of
his departure could have solved everything,
given that his survivors claimed spousal and
social responsibility in their respective claims and
choices. The very fact that they mapped out the
drama and included the different voices indicates
that the idea of personal and social responsibility
is complex and calls for constant negotiation. In
the death of one individual, the society saw
manifested the multiple debates on gender,
kinship, succession, and the extent of
jurisprudence over personal marital matters and
cultural claims of the extended family. Assigning
praise and blame here is very difficult because
what is involved would be the idea that someone
should accept responsibility for the aftermath of
SM’s death. Cohen and Odhiambo do not
engage in that kind of speculation, but the reader
could infer these questions from following the
carefully crafted narrative that gives voice to
ordinary citizens who themselves would like to
see someone accept blame or take responsibility.
If ‘Burying SM’ only hints at the idea of
responsibility, ‘The Risk of Knowledge’ (Cohen and
Atieno-Odhiambo, 2004) perhaps opens, all the
same, an undefined window into the question of
responsibility. One could argue that the idea of
responsibility even as a moral category is all over
the book beginning with the expensive trip the
Kenyan President and his entourage undertake
to Washington DC on a rented Concorde jet at
the Kenyan tax payers’ expense. The large
entourage was made up of ministers and civil
servants. This was a political miscalculation that
leads to the fact that President George Herbert
W. Bush ignored the visiting Kenyan President,
Daniel Arap Moi and preferred to pay attention
to the astute Foreign Minister, the Honorable
Robert Ouko, thus giving the impression that the
Foreign Minister had willfully upstaged the
Kenyan President and humiliated his boss. This
suspicion was the beginning of Robert Ouko’s
downfall, so much so that when he died, many
suspected that his enemies might have been
responsible for his death.
Odhiambo and Cohen wrote as social
scientist and had no intention of casting blame,
or claiming that they knew who was behind the
death of the Honorable Foreign Minister. Yet in
their critical analysis, one wonders if they also
make the reader want to ask the question, who is
responsible? They do not answer that question,
but I suspect that if they were to step out of their
unique style of narrative which gave voice to the
public, they might say responsibility lies in the
vary story of the postcolonial state in which
many a political dispute was settled by events
which we cannot adequately account for. I do
not intend to pursue these questions here, but
close with this suspense to invite further
reflection on the idea of collective responsibility
as I have explored in this essay that I have
written to honor the memory of Professor Elisha
Stephen Atieno-Odhiambo, my colleague and
friend, in the hope that we can reflect on the
importance of collective responsibility in the
postneocolonial states in Africa.
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Kenya’s Elections Law dangles the Prospect of Recall even as it Renders it
Essentialy Unworkable
Carey Francis Onyango
Faculty of Arts and Social Sciences, Maseno University, PO Box 333, Maseno, Kenya.
E-mail: cfonyango@yahoo.com
______________________________________________________________________________
Abstract: The Constitution of Kenya granted the right to recall legislators. In stipulating
the grounds and procedures thereto, The Elections Act 2011 (Republic of
Kenya, 2011) only “...dangles the prospect of recall…even as it renders it
essentially unworkable”(Johnston, 2009). The grounds for recall are faithful to
Chapter Six of the Constitution (Republic of Kenya, 2010, 51-54). That the
grounds must be confirmed by the High Court makes the Act evade the
criticism of recall as a political tool for targeting marginal seats (Coleman,
2011). However, the signature requirements for a recall petition, conditions
for the recall election, and the resulting special election create an
insurmountable hurdle. The Act thus contravenes the constitutional provision
of direct exercise of sovereignty.
Key words: Kenya, Elections Law, Unworkable
______________________________________________________________________________
I. THE GROUNDS FOR RECALL
1. Grounds; Faithfull to Chapter Six of the
Constitution
Article 104 of Chapter Eight (The Legislature) of
the new Constitution of Kenya (Republic of
Kenya, 2010, p. 69) give the electorate the right
to recall members of Parliament, both from the
Senate and the National Assembly. Parliament
was in the transitional and consequential
provisions (Ibid., 190) tasked to enact legislation
providing both the grounds and procedure, and
this came in the provisions of Part IV, “Recall of
a Member of Parliament”, of The Elections Act
2011 (Republic of Kenya, 2011).
Article 75 (“Conduct of State Officers”) of
Chapter Six of the Constitution (Leadership and
Integrity) had already hinted (Republic of
Kenya, 2010, pp. 52-53) at some grounds that
have been included in the provisions of The
Elections Act 2011. Article 75 states that State
Officers, in this regard Members of Parliament,
who contravene the following provisions of
Articles 75, 76, 77, and 78 Constitution shall be
subject to disciplinary procedures, including
those resulting in dismissal or removal from
office:
(a) Avoidance of conflict of interest between
personal interests and public or official
duties;
(b) Avoiding compromising any public of
official interest in favour of a personal
interest;
(c) Avoiding demeaning the office held;
(d) Delivering to the State a gift or donation
received on a public or official occasion
and which is not subject to exemption by
an Act or Parliament;
(e) Not maintaining a bank account outside
Kenya unless under exemption provided
under an Act of Parliament;
(f) Not seeking or accepting a personal
benefit or loan in circumstances that
compromise the integrity of the officer;
(g) A full time State Officer not participating
in any other gainful employment;

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(h) Not holding dual citizenship unless one
has been made a citizen of another
country by laws of that country without
the ability to opt out.
The Elections Act 2011(Republic of Kenya, 2011) in
its Section 45 (Republic of Kenya, 2011, p. 629)
on the other hand specifies two grounds for
recall. First, that a Member of Parliament may
be recalled if found to have violated the
provisions of Chapter Six of the Constitution.
Those provisions as specified in Articles 75, 76,
77, and 78 of the Constitution are the 8
numerated above. Article 73 of the Constitution
(Republic of Kenya, 2010, p. 51) has elaborated
the grounds as follows;
(a) State officers are to exercise their
authority in a manner consistent with the
purposes and objects of the Constitution;
(b) State Officers are to demonstrate respect
for the people;
(c) They should promote public confidence
in the integrity of the office;
(d) They are to be elected in free and fair
elections;
(e) They must exercise objectivity and
impartiality in decision making, and in
ensuring that decisions are not influenced
by nepotism, favouritism, and other
improper motives of corrupt practices
(f) They are to provide service based on
honesty in the execution of public duties;
(g) They are to declare any personal interest
that may conflict with public duties;
They have to demonstrate accountability
to the public for decisions and actions;
(h) They must demonstrate discipline and
commitment in service of the people.
The Second ground specified for recall by The
Elections Act 2011 (Republic of Kenya, 2011, p.
629) is if a Member of Parliament is found to
have mismanaged public resources.
2. Due Process Required to Confirm Grounds
for Recall
Section 45 of the act, specifies that the recall can
only be initiated if the grounds so specified are
confirmed through a judgement of the High
Court. In that way, and by being faithful to
Chapter Six of the Constitution (Republic of
Kenya, 2010, pp. 51-54) in providing for the
grounds for recall, the Act has evaded one of the
criticisms of recall, i.e. it can be used as a
political tool by organised campaigns to target
marginal seats (Coleman, 2011). With that it is
unnecessary to put insurmountable hurdles in the
conditions for circulation of the recall petition, in
the recall election, and subsequent special
election in the manner that the Act then proceeds
to do.
3. Comparison of Grounds of Recall from
Other Jurisdictions
One needs to take note of the fact that in some
recall jurisdictions, especially in the most US
states, any registered voter can begin a recall
campaign for any reason. This is something the
Kenyan law has avoided. Often, the reasons in
the US states are political. The 2011 recall efforts
in Wisconsin provide a good example for
politically-motivated recalls (Legislatures, 2011),
that the Kenyan Act has gone out of its way to
avoid. Out of the 19 that have recall provisions,
only the 8 listed in Table 1 below require specific
reasons for recall.
Again in most of those 19 US states confirmation
of whatever grounds for recall by due process is
not even a requirement.
II.
II. SOME PRELIMINARY
CONDITIONS FOR FILING AND
INITIATING OF RECALL
PETITIONS
The Elections Act 2011 (Republic of Kenya, 2011,
p. 630) Section 45 (5) is clearly unconstitutional
when it provides that a recall petition shall not be
filed against a Member of Parliament more than
once during the term of that member of
Parliament. This provision would only make
sense in the case of avoidance of double jeopardy
where the High Court has in a previous instance
ruled against the confirmation of the very same

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charge. It would not make sense if the member of
Parliament has engaged in a different
contravention of the provisions specified in the
grounds, or if the High Court had confirmed the
very same charge and the recall petition had for
some reason not exhausted its process.
The Section 45 (6) of The Elections Act 2011
(Republic of Kenya, 2011, p. 630) is also clearly
unconstitutional when it stipulates that someone
who unsuccessfully contested an election under
the Act shall not directly or indirectly be eligible
to initiate a recall petition. This is discriminatory
to persons who have unsuccessfully contested
elections. Article 104 of the Constitution
(Republic of Kenya, 2010, p. 69), as should
indeed be, has endowed the right of recall on the
electorate as such.
III. CONDITIONS FOR CIRCULATING A
RECALL PETITION
Some of the conditions specified for circulating
the petition are clearly problematic.
1. The Petitioner Must have Been
Registered as a Voter in the Respective
Election:
Section 46 (1) of The Elections Act 2011
(Republic of Kenya, 2011, p. 630) provides that a
petition can only be filed by one who is
registered as a voter in the respective jurisdiction.
What is however problematic is an additional
requirement that the petitioner must have been a
registered voter in the election in respect of
which the recall is sought. Again, Article 104 of
the Constitution (Republic of Kenya, 2010, p.
69), as should indeed be, has endowed the right
of recall on the electorate as such.
2. Signature Requirements:
The signature requirements as provided in
Section 46(2, 3, and 4) of The Elections Act 2011
(Republic of Kenya, 2011, p. 631) are too
stringent, and needlessly so. This is because as
has been argued in Section I above, first the
grounds specified by the Act for recall are non-
political and involve the violation of Chapter Six
of the Constitution or mismanagement of public
resources. Secondly the violations of the grounds
have to be confirmed by a judgement rendered
by the High Court.
The Act states that the petition must be
accompanied by the signatures of voters in the
respective jurisdiction making at least 30% of its
registered voters. Further to that, the 30% figure
must have a spread of at least 15% of registered
voters in at least half of the number of wards in
either the respective county (in the case of a
Senate seat) or the respective constituency (in the
case of a National Assembly seat). Additionally,
the 30%
figure must have a spread in terms of
representing “the diversity of people in the
county or constituency as may be the case”.
These signature requirements are extremely
demanding. The 30% sum of registered voters in
a jurisdiction is already demanding enough even
before it is saddled with the two additional
requirements for ward and diversity spread. The
situation is even worsened by the requirement
that the petitioner has to collect and submit the
signatures to the Independent Electoral and
Boundaries Commission within 30 days.
Perhaps a picture of how demanding those
requirements are can be gleaned from
comparisons with provisions from other
jurisdictions.
(a). British Columbia, Canada: The signature
requirements for recall of a member of the
Legislative Assembly are very demanding. The
petitioner has 60 days to collect signatures from
more than 40 per cent of the voters who were
registered to vote in the Member’s electoral
district in the last election. However, unlike in
there are no set grounds with the petitioner only
required to provide a statement of why the
legislator should be recalled. One may
nevertheless have to agree that the political
events that led to the adoption of the recall in the
Canadian Province resulted in “a law that
dangles the prospect of recall …even as it renders
[it] essentially unworkable” (Johnston, 2009),
and the same could be said of Kenya.

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(a). Ecuador: The request for recall must be
backed by a number accounting for only no less
than 10% of the persons registered in the
corresponding voter registration list. In the case
of the President of the Republic, backing by a
number accounting for no less than 15% of the
persons registered in the electoral registration list
(Ecuador, 2011). There are no other
requirements.
(b). Federated States of Micronesia, Chuuk,
Pohnpei, and Yap: Article IX, Section 5, of the
Constitution(Federated States of Micronesia,
2011a) provides that; (a) a petition for recall of
the Governor or Lieutenant Governor may be
initiated by a majority of all mayors in the State
of Chuuk, or by registered voters equal in
number to at least 15 % of those who voted in
the last general election for Governor and
Lieutenant Governor;
(b) a petition for recall of a Senator or a
Representative may be initiated by a majority of
all mayors in the applicable Representative
district or Senatorial Region, or by registered
voters from such district or region equal in
number to at least 20% of those who voted in the
last general election in such district or region.
(c). Federated States of Micronesia, Kosrae:
Article VII, Section 1, of the Constitution
(Federated States of Micronesia, 2011b) provides
that the Governor, Lieutenant Governor, a
justice of the State Court, or a Senator may be
removed from office by recall initiated by a
petition, and be signed by at least 25% of the
persons qualified to vote for the office occupied
by the official, except that recall of a justice of
the State Court requires the same number of
signatures as a statewide elective office.
(d) Germany: The constitutions of some states
give the electorate the right to recall entire
legislatures.
(i) In Baden-Wuerttemberg that can be initiated
through a petition signed by 200, 000.00
registered voters, as per part II Article 43 of the
constitution (Baden–Wuerttemberg., 1953). The
population of that state is in the range of around
10, 000, 000.00 (European Social Fund, nd) so
that the number of signatures required makes up
just about 2.5% of the population.
(ii) Bavaria: In Bavaria, the constitution in Title
II, Article 18 (2) (Bayern, 1946), provides for a
recall of the entire legislature in a referendum if
petitioned by 1, 000, 000.00 registered voters.
The population of Bavaria now stands at
approximately 12, 443,893 (Government of the
State of Bavaria, 2011). The required number of
signatures is thus below 10% of the total
population. About 84.5% of the population is
above 15 years of age, meaning that most of
them are of voting age hence increasing
possibilities for the availability of potential
petitioners.
(iii) Berlin: According to the constitution of the
city-state of Berlin, Article 63, a recall of the
complete legislature can be initiated by 20% of
the registered electors (International Institute for
Democracy and Electoral Assistance, 2008, p.
116). During a political crisis in January 1981 the
Christian Democratic opposition started a
citizens’ initiative to recall the legislature. Within
a few days, 300,000 signatures – more than the
quorum required – had been collected. In March,
the parliament decided to call an early election in
May 1981, without waiting for the referendum
vote. Since the goal of the initiative had been
reached the petition was withdrawn.
(iii) Brandenburg: Article 76(1) of the
constitution (State of Brandenburg, 1992)
provides for the recall of the entire legislature
through an initiative that has to be signed by at
least 150, 000.00 registered voters. The
population of Brandenburg is about 2, 500,
000.00 (Government of the State of
Brandenburg, circa 2004, p. 3), and thus the
required signatories is just above 5% of the
population.
(iv) Bremen: Article 70 of the constitution(Free
Hanse City of Bremen 1947) provides for an
initiation of recall of the entire legislature
through a petition signed by at one fifth of
registered voters, i.e. about 20%.

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(e). Kiribati: This presents another case of a
quite high figure of signatures required for filing
a recall petition. Chapter V, Section 59 (1) of the
Constitution (Republic of Kiribati, 2007)
provides that subject to the provisions of
subsections (6) and (7) of the section, if the
Speaker receives a petition calling for the
removal of an elected member of the Maneaba ni
Maungatabu (legislature) signed by a majority of
the persons who were registered as electors, at
the time of the last election of that member, in
the electoral district from which that member
was last elected, he shall send the petition
forthwith to the Electoral Commission.
(f). Liechtenstein: Article 48 of the Constitution
provides that the entire legislature may be
recalled if up to 1,500 Liechtenstein citizens
eligible to vote or four municipalities, by means
of resolutions of their municipal assemblies,
demand a popular vote on the dissolution
(Liechtenstein, 2009). The population of
Liechtenstein was in July 2011 estimated at
about 35, 236 (Index Mundi, 2011). Thus the
sum of 1500 eligible voters required to sign a
petition to recall the legislature is less than 5% of
the entire population at least. Those of voting
age were estimated to make up about 84% of the
population, i.e. a figure of about 29, 571. So the
sum of 1500 eligible voters is just about 5% of the
population of eligible voters. Of course one must
take into account the fact that it would not be too
big a problem to organize an election for 35, 000,
so that the recall of the entire legislatures should
not be that much of a big deal.
(g). Nigeria: This appears to be on the same
prohibitive side as in the Kenyan case. Articles
69 and 110 of the Constitution of the Federal
Republic of Nigeria, 1999(Law, 2009) provide that
recall petitions for either members of the
National Assembly of the Senate has to be signed
by more than one-half of the persons registered
to vote in that member's constituency alleging
their loss of confidence in that member.
(h). Palau: Article IX, Section 17 of the
Constitution(Constitution of the Republic of
Palau, 1981) provides that the people may recall
a member of the Olbiil Era Kelulau (legislature)
if initiated by a petition signed by not less than
25% of the number of persons who voted in the
most recent election for that member of the
Olbiil Era Kelulau.
(i). The US: In the 19 states that have recall
provisions, as listed in Table 2 below, the
signature requirements are also more or less as in
the other jurisdictions based on a formula,
generally, a percentage of the vote in the last
election for the office in question, although some
states base the formula on the number of eligible
voters or other variants. The signature
requirements, as one can see from Table 2, are:
25% in nine states; 25% for state wide offices and
35% for other offices in Washington; one-third
(1/3) in Louisiana; and 40 % in Kansas.
California's requirements are 12% for state wide
offices and 20 % for state senators and appellate
judges(Constitution of the State of California,
1879). Georgia requires 15% for state wide
offices, and 30% for all others. Idaho requires
20% for all offices. Montana has the lowest
number of required signatures, i.e. 10% for state
wide officials and 15% for state district offices
such as legislative districts.
A look at the percentages in Table 2 indicates
that the average percentage of signatures
required for state wide officials (governors, state
legislators, and other state officials) in the 19
states, is about 22.7%. One arrives at that
average percentage by adding the percentages
provided for each state in regard to state wide
offices and then dividing it by 19. In the case of
California one has to get the average percentage
between the 12% for some state wide offices and
the 20% for other state wide offices like senators
and appellate judges. In Louisiana one has to get
the average percentage between the 33.3% for
jurisdictions with over 1000 voters and the 40%
for those with over 1000 voters.
Only in the cases of California and Illinois are
there additional requirements relating to spread
of the percentage of signatures needed, and these
are hardly as prohibitive as in the Kenyan case.
In California the 12% needed for state wide
offices (other than senators and appellate and
trial judges, and members of the Board of
Equalization) has only to include 1% from each

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of only 5 out of a total 58 counties. The 2010
census (California Department of Finance 2011)
put the population of California at 37 million,
almost the entire population of Kenya. The
California petitioner has 160 days (more than 5
months) circulation time, whereas the Kenyan
one has 30 days (only 1 month). In Illinois
signatures needed are of at least 15% of the votes
cast for governor in the preceding general
election in each of each of at least only 25 out of
a total of 102 counties. This is the only
requirement and is not saddled with another one
such as 30% of signatures of electors in Illinois as
an addition to the 15% of signatures needed from
each of 25 counties. The Illinois petitioner has
150 days (5 months) circulation time.
Only in 4 out the 19 states with recall
provisions are there signature requirements of
more than 25%. In Georgia, signatures of 30%
of eligible voters for office at time of last election
are needed for non-state wide offices. This has
not been saddled with a spread or any other
requirement. The Georgia petitioner has 90 days
circulation time (3 months). In Kansas,
signatures of electors equivalent to 40% of the
votes cast in the last election for the official being
recalled are needed for all offices. This is the
only requirement and has not been saddled with
a spread or any other requirement. The Kansas
petitioner has 90 days circulation time (3
months). In Louisiana, signatures of 33.3 %
eligible voters is needed for recall in jurisdictions
with over 1000 eligible voters and signatures of
40% of eligible voters in jurisdictions of less than
1000 eligible voters. There is no additional
requirement and the petitioner has 90 days (3
months). In Washington, signatures of an
equivalent of 35% of the votes cast in the last
election for the official being recalled are needed
in the case of non- state wide offices. There is no
additional requirement, and the petitioner has
180 days (6 months) circulation time.
(j). Venezuela: Article 72 of the Constitution
provides that all magistrates and other offices
filled by popular vote are subject to revocation. A
number of voters constituting at least 20% of the
voters registered in the pertinent circumscription
may extend a petition for the calling of a
referendum to revoke such official's mandate
(Bolivarian Republic of Venezuela, 2011). There
are no additional signature requirements.
IV. IV. THE RECALL ELECTION AND THE
RESULTING SPECIAL ELECTION
1. Is A Simple Majority Decision Needed
in the Recall Election? Or Must There
be a Mandate of at 50% of Registered
Voters?
If the circulation conditions in The Election Act
2011 (Republic of Kenya, 2011) have created
quite an insurmountable hurdle, then the
conditions for the recall election and the
resulting special election are equally forbidding if
not confusing. Section 47 (5) states that a recall
election shall be decided by a simple majority of
voters voting in the recall election. Section 48 on
the other hand states that a recall election shall
be valid if the number of voters who concur in
the recall election is at least 50% of the total
number of registered voters in the respective
jurisdiction (county or constituency).
Three things arise here: Lack of clarity, an
apparent contradiction, or a condition that
would be very difficult to meet in a Kenyan by-
election.
(a) Lack of Clarity: First it is unclear whether
Section 48 applies to the recall election of
Section 47 (1-6) which is like a referendum on
whether or not to recall the legislator, or whether
it applies to the resulting special election of
Section 47 (6-7) which is subsequent to the recall
election returning a verdict in favour of a recall.
(b) An Apparent Contradiction or at Least a
Paradox: Secondly If Section 48 applies to the
recall election, then it would be a contradiction,
since a condition of a simple majority of the
voters voting either way in the recall election as a
deciding factor (Section 47, 5) is not one and the
same thing as requiring that the recall be valid
only if at least 50% of the total number of
registered voters decide in favour. Section 48
refers only to the recall election rather than to the

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subsequent special election referred to in Section
47 (6-7).
(c) A Near Impossible Hurdle to Surmount in a
Kenyan Special Election: Let us assume, given
the lack of clarity, that Section 48 applies to both
the preceding recall election and the special
election dependent on the former returning
verdict in favour of recall. A validity condition of
at least 50% of the total number of registered
voter voting in favour either in the recall or in the
special election is very difficult to achieve in a
Kenyan special election, leave alone a validity
condition of at least 50% of those voting deciding
in favour. This can be gleaned from results of
recent parliamentary special elections within the
years 2009-2011, and even the constitutional
referendum of 2010:
(i) At the referendum, Kenya had
12,616,627 registered voters. Votes cast
both in favour and against the then draft
constitution, were 9, 106, 285. The voter
turnout was 72.18% (Kenya, 2010).
(ii) Parliamentary Special Elections in 2011:
On the 23rd
of May 2011 Ikolomani
Constituency then had 35,434 registered
voters. Votes cast were 24, 592, making a
voter turnout of 69.4%. This was quite a
high figure by Kenyan special election
voter turnout percentages (Kenya,
2011a). On the 18th
of August 2011
Kamukunji Constituency had 128, 526
registered voters. Votes cast were 40,474
making a voter turnout of 31.49% in an
urban constituency where voting should
ordinarily be relatively easier. The
combined average turnout percentage for
these two by-elections in 2011 was
50.44% (Kenya, 2011b).
(iii) Parliamentary Special Elections in 2010:
On the 20th
of September Starehe
Constituency had 135,576 registered
voters. Votes cast totalled 56,205, making
a voter turnout of 41.46 % (Kenya,
2011e). Wajir South was quite interesting
for a rural and quite vast constituency in
an arid part of the country. It had a total
number of 22,027 registered voters
(Kenya, 2011f). Votes cast were 16, 084,
making a turnout of 73.02%. Makadara
Constituency had 124,493 registered
voters, 50,187 votes were cast, and the
turnout was 40% (Kenya, 2011d).
Kirinyaga Central Constituency had
56,595 registered voters, out of 38,702
voted, and the turnout was 68%. The
average turnout for 2010 was 49.82%
(Kenya, 2011c).
(iv) Parliamentary Special Elections in 2009:
Matuga Constituency had 41, 719
registered voters with 32,895 voting,
making a turnout of 77.6% (Kenya,
2009b). Shinyalu had 40,950, and 25, 277
votes were cast, making a turnout of
61.73% (Kenya, 2009c) . Bomachoge had
51,515 registered voters with 35,785
voting, and making a turnout of 69%
(Kenya, 2009a).
(v) Combined Average Voter Turnout in
Parliamentary Special Elections in 2009,
2010, and 2011. The average turnout for
2009, at 69.44%, was much higher than
those of 2010 and 2011. The combined
average turnout for by-elections in those
three years is 56.56%. It is difficult with
such an average percentage of voter
turnout to see how a recall election or a
recall special election could attain a
validity condition of at least 50% of the
total number of registered voters voting
in favour, leave alone a voter turnout of
at least 50% of the total number of
registered voters. Out of 9 special
elections 4 had voter turnouts of below
50%.
V. CONCLUSION
The Constitution of Kenya (Republic of Kenya,
2010, p. 69) did not grant the right to recall
legislators in vain. As a matter of fact that right
was grounded in the express Statement in Article
1 (2) that the people may exercise their sovereign
power either directly or through their

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democratically elected representatives (Republic
of Kenya, 2010, p. 13). Parliament has vitiated
those provisions by creating a recall “law that
dangles the prospect of recall…even as it renders
it essentially unworkable” (Johnston, 2009).
The grounds specified for recall have been
faithful to the requisites for the conduct of state
officers of Chapter Six of the Constitution.
Besides, those grounds have to be confirmed
through due process by the High Court. Here the
Act has evaded one of the criticisms of recall, i.e.
it can be used as a political tool by organised
campaigns to target marginal seats (Coleman,
2011).
However, the conditions for circulating a recall
petition, especially the signature requirements,
seem to have created an insurmountable hurdle,
as can be gleaned from comparisons with other
jurisdictions with recall provision. That this need
not be the case can be argued on consideration of
the fact that grounds for recall have to be
confirmed by due process. Equally, the
Constitution in Article 75 (a) and (b) already
provides (Republic of Kenya, 2010) for dismissal
or removal of office as possible disciplinary
grounds for contravention of most of those
grounds.
The conditions for the recall election and the
resulting special election, i.e. that there has to be
a voter a mandate of at least 50% of registered
voters concurring with the recall is forbidding.
Since the Elections Act in this regard appears to be
in direct contravention of the express
constitutional provision of direct exercise of
sovereignty of which the recall expressly
constitutionally provided for is an instance, it can
be challenged on constitutional and other
grounds.

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Table 1: Grounds for Recall in 8 US States
Grounds for Recall
Alaska: Lack of fitness, incompetence, neglect of duties or corruption (AS §15.45.510)
Georgia: Act of malfeasance or misconduct while in office; violation of oath of office; failure to
perform duties prescribed by law; will fully misused, converted, or misappropriated, without
authority, public property or public funds entrusted to or associated with the elective office to which
the official has been elected or appointed. Discretionary performance of a lawful act or a prescribed
duty shall not constitute a ground for recall of an elected public official. (Ga. Code §21-4-3(7) and
21-4-4(c)).
Kansas: Conviction for a felony, misconduct in office, incompetence, or failure to perform duties
prescribed by law. No recall submitted to the voters shall be held void because of the insufficiency of
the grounds, application, or petition by which the submission was procured. (KS Stat. §25-4301).
Minnesota: Serious malfeasance or nonfeasance during the term of office in the performance of the
duties of the office or conviction during the term of office of a serious crime (Const. Art. VIII §6).
Montana: Physical or mental lack of fitness, incompetence, violation of oath of office, official
misconduct, conviction of certain felony offenses (enumerated in Title 45). No person may be
recalled for performing a mandatory duty of the office he holds or for not performing any act that, if
performed, would subject him to prosecution for official misconduct. (Mont. Code §2-16-603).
Rhode Island: Authorized in the case of a general officer who has been indicted or informed against
for a felony, convicted of a misdemeanour, or against whom a finding of probable cause of violation
of the code of ethics has been made by the ethics commission (Const. Art. IV §1).
Virginia: Neglect of duty, misuse of office, or incompetence in the performance of duties when that
neglect of duty, misuse of office, or incompetence in the performance of duties has a material
adverse effect upon the conduct of the office, or upon conviction of a drug-related misdemeanour or
a misdemeanour involving a "hate crime" (§24.2-233).

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Table 2: Signature Requirements for Circulating a Recall Petition in US States
Signature Requirements Circulation Time
Alaska 25% of the votes cast in the last election for the official being recalled Not specified
Arizona 25% of the votes cast in the last election for the official being recalled 120 days
California For state wide officers: 12% of the votes cast in the last election for the
official being recalled, 1% from each of 5 counties.
State Senators, members of the Assembly, members of the Board of
Equalization, judges of courts of appeal: 20% of the votes cast in the
last election for the official being recalled
160 days
Colorado 25% of the votes cast in the last election for the official being recalled 60 days
Georgia For state wide officers: 15% of eligible voters for office at time of last
election, 1/5 from each congressional district.
Others: 30% of eligible voters for office at time of last election
90 days
Idaho 20% of eligible voters for office at time of last election 60 days
Illinois 15% of the votes cast for governor in the preceding general election
from each of at least 25 counties. Also required are the signatures from
at least 20 members of the House of Representatives and 10 members
of the Senate, with no more than half the signatures of members of
each chamber from the same political party.
150 days
Kansas 40% of the votes cast in the last election for the official being recalled 90 days
Louisiana If over 1,000 eligible voters: 33.3% of eligible voters for office at time
of last election.
If fewer than 1,000 eligible voters:
40% of eligible voters for office at time of last election
180 days
Michigan 25% of total votes cast for position at last election 90 days
Minnesota 25% of total votes cast for position at last election 90 days
Montana For state wide officers: 10% of eligible voters for office at time of last
election
For district officers: 15% of eligible voters for office at time of last
election
3 months
Nevada 25% of the votes cast in the last election for the official being recalled 60 days
New Jersey 25% of the registered voters in the electoral district of the official
sought to be recalled
Governor or U.S.
Senator: 320 days
All others: 160 days
North Dakota 25% of the votes cast in the last election for the official being recalled Not specified
Oregon 15% of total votes cast in officer's district for all candidates for
governor in the last election
90 days
Rhode Island 15% of total votes cast for said office in last general election 90 days
Washington For state wide officers:25% of the votes cast in the last election for the
official being recalled
Others:35% of the votes cast in the last election for the official being
recalled
State wide officers: 270
days
Others: 180 days
Wisconsin 25% of total votes cast for the office of governor at the last election
within the same district or territory of that officer being recalled
60 days
Source: National Conference of State Legislatures, 2011

AN ANALYIS OF THE LATE PROFESSOR ATIENO-ODHIAMBO S HISTORICAL DISCOURESES....pdf.pdf

AN ANALYIS OF THE LATE PROFESSOR ATIENO-ODHIAMBO S HISTORICAL DISCOURESES....pdf.pdf

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AN ANALYIS OF THE LATE PROFESSOR ATIENO-ODHIAMBO S HISTORICAL DISCOURESES....pdf.pdf